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(A) deny the request upon a finding that the Division Chief's determination was proper; or
(B) set aside or modify the Division Chief's determination; or
(C) direct the Division to take other specified action.
(b) Before taking final action, the State Water Board may hold a hearing for the purpose of oral argument or receipt of additional evidence or both; or, the State Water Board may provide for an informal meeting between the appellant, Division staff, and a member of the State Water Board and such other persons as the State Water Board deems necessary for arbitration.
(c) If a hearing is held, the State Water Board shall give reasonable notice to the appellant, the Division, and other persons as the State Water Board deems appropriate, of the time and place of the hearing and the issues to be considered. The hearing shall be conducted in a manner deemed most suitable for securing all relevant evidence without unnecessary delay.
Note: Authority cited: Section 25284.4, Health and Safety Code. Reference: Section 25284.4, Health and Safety Code.
s 2790. Disciplinary Proceedings.
Note: Authority cited: Section 25284.4, Health and Safety Code. Reference: Section 25284.4, Health and Safety Code.
s 2800. Fees.
(a) The nonrefundable application fee for an initial tank tester license is one hundred dollars ($100).
(b) The examination fee for a tank tester license is two hundred dollars ($200).
(c) The examination fee for a tank tester shall not exceed six hundred dollars ($600).
(d) The nonrefundable reexamination fee is two hundred dollars ($200).
(e) The license renewal fee for a tank tester shall not exceed six hundred dollars ($600).
(f) The license reinstatement fee is two hundred dollars ($200).
(g) The fee for a duplicate license, to replace a lost, stolen or destroyed license is ten dollars ($10).
(h) The fee for the cost of a certified copy of any license or a certification of licensure is five dollars ($5).
(i) The fee for processing a dishonored check is fifteen dollars ($15).
Note: Authority cited: Section 25284.4, Health and Safety Code. Reference: Section 25284.4, Health and Safety Code.
s 2801. Copies of Laws, Rules, etc.; Disposition.
The Office of Tank Tester Licensing shall furnish one copy of the licensing law, rules, regulations, manuals, or guides to any applicant or licensee or other interested parties without charge.
Note: Authority cited: Section 25284.4, Health and Safety Code. Reference: Section 25284.4, Health and Safety Code.
s 2802. Refund of Fees.
Application and license fees are not refundable. Examination fees may be refunded only if the application is rejected by the Office of Tank Tester Licensing, the Division Chief or the State Water Board.
Note: Authority cited: Section 25284.4, Health and Safety Code. Reference: Section 25284.4, Health and Safety Code.
s 2803. Applicability.
(a) The regulations in this chapter implement the Barry Keene Underground Storage Tank Trust Fund Act of 1989 (Health and Safety Code, division 20, chapter 6.75, section 25299.10 et seq.). Except as otherwise specifically provided, this chapter applies to owners and operators of petroleum underground storage tanks as defined in article 2 of this chapter.
(b) This chapter applies in part to owners of residential tanks as this term is defined in article 2 of this chapter.
(c) This chapter establishes financial responsibility requirements for certain owners and operators of underground storage tanks (article 3).
(d) This chapter provides for reimbursement from the Underground Storage Tank Cleanup Fund (Fund) of eligible corrective action, regulatory technical assistance, and third party compensation costs incurred by eligible owners and operators of underground storage tanks and residential tanks (article 4).
(e) This chapter establishes procedures for requesting review of a staff decision by the Fund Manager, appealing a staff decision or a Fund Manager Decision to the Chief of the Division of Clean Water Programs, and for petitioning the State Water Resources Control Board for review of a decision of the Division Chief (article 5).
(f) This chapter establishes procedures for owners and operators of underground storage tanks and other responsible parties to petition for review of a regulatory agency decision not to close an underground storage tank or residential tank site (article 6).
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.10, 25299.11, 25299.13, 25299.31, 25299.39.2, 25299.51, 25299.56, 25299.57 and 25299.58, Health and Safety Code.
s 2804. Definitions.
Unless the context clearly requires otherwise, the terms used in this chapter shall have the following meanings:
"Accident" means an unintentional and unexpected event.
"Annual aggregate amount" means the total amount of financial responsibility that is required to cover all unauthorized releases that might occur in one year.
"Annual revenue" with respect to public entities, means the total annual general purpose revenues, excluding all restricted revenues over which the governing agency has no discretion, as reported in the annual Report of financial Transactions submitted to the Controller, for the latest fiscal year ending prior to the date the Fund application was filed. With respect to nonprofit organizations, this term means the total annual revenues as shown in an annual fiscal report filed with the Registry of Charitable Trusts of state and federal tax records, based on the latest fiscal year ending prior to the date the Fund application was filed.
"Board" means the State Water Resources Control Board.
"Bodily injury" means the physical injury, sickness, disease, including death, sustained by any person as a proximate result of an unauthorized release from an underground storage tank or residential tank.
"Certification" means a written statement signed by a claimant attesting to the accuracy and completeness of the facts contained in the written statement.
"Chief financial officer" means the person who normally prepares, verifies or certifies financial information on behalf of an owner or operator. The term means the owner or operator of the underground storage tank if no other individual is designated as the chief financial officer.
"Claim" means a submittal to the Fund for the reimbursement of costs incurred due to an occurrence. A claim consists of several documents, including, but not limited to, the Fund application, reimbursement requests, and verification documents.
"Claimant" means an owner or operator who files a claim against the Fund.
"Corrective action" means any activity necessary to investigate and analyze the effects of an unauthorized release; propose a cost-effective plan to adequately protect human health, safety, and the environment and to restore or protect current and potential beneficial uses of water; and implement and evaluate the effectiveness of the activity(ies). Corrective action does not include any of the following activities:
(a) detection, confirmation, or reporting of the unauthorized release; or,
(b) repair, upgrade, replacement or removal of an underground storage tank or residential tank.
"De facto owner" means the owner of real property who has actual possession of and control over an underground storage tank or residential tank that is located on the property and that has been abandoned by its legal owner and operator.
"Designated representative" means any person who provides financing for costs claimed in a reimbursement request. The term includes the state, any department or agency thereof, or the federal government.
"Division" means the State Water Resources Control Board, Division of Clean Water Programs, or any other division of the board authorized to administer the Fund.
"Facility" means any one, or combination of, underground storage tanks used by a single business entity or person at a single location or site.
"Federal Act" means subchapter IX of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Solid Waste Amendments of 1984 (42 U.S.C. ss 6991-6991i), as it may subsequently be amended or supplemented, and the regulations adopted pursuant thereto. The Federal Act is incorporated herein by reference.
"Financial responsibility" means state and federal financial responsibility requirements for petroleum underground storage tanks. These requirements are established by:
(a) title 40 Code of Federal Regulations, part 280, subpart H (commencing with section 280.90), established pursuant to section 6991c(c) of title 42, United States Code;
(b) Health and Safety Code Section 25292.2;
(c) Health and Safety Code, division 20, article 3, chapter 6.75 (commencing with section 25299.30); and
(d) article 3 of this chapter.
"Fund" means the Underground Storage Tank Cleanup Fund created pursuant to section 25299.50 of the Health and Safety Code.
"General purpose revenues" means revenues consisting of all of the following: secured and unsecured revenues; less than countywide funds, secured and unsecured; prior year secured and unsecured penalties and delinquent taxes; sales and use taxes; transportation taxes (nontransit); property transfer taxes; transient lodging taxes; timber yield taxes; aircraft taxes; franchise taxes; fines, forfeitures, and penalties; revenues from use of money and property; motor vehicle in-lieu taxes; trailer coach in-lieu taxes; homeowner property tax relief; open-space tax relief; and cigarette taxes.
"Gross negligence" means any act or failure to act by the owner or operator, its employees, agents, or any other person under the owner's or operator's supervision or control, in reckless disregard of the consequences, that causes or allows an unauthorized release from an underground storage tank or residential tank to occur or to continue.
"Heating oil" means petroleum, as defined in 40 Code of Federal Regulations, section 280.12, that is: Number 185, page 37117, namely: No.1, No.2, No.4-light, No.4-heavy, No.5-light, No.5-heavy, and No.6 technical grades of fuel oil; other residual fuel oils (including Navy Special Fuel Oil and Bunker C); and other fuels when used as substitutes for one of these fuel oils.
"Initial site investigation" means a soil and groundwater investigation sufficient to identify where contamination resulting from an unauthorized release is most likely to be present.
"Initiation of corrective action" means actual commencement of corrective action work by or under the authority of an owner or operator in accordance with California Code of Regulations, title 23, division 3, chapter 16, article 11 (commencing with section 2720).
"Local agency" means a local agency authorized to implement Health and Safety Code, division 20, chapter 6.7 (commencing with section 25280) pursuant to section 25283 of the Health and Safety Code.
"Nonprofit organization" means a nonprofit public benefit organization incorporated pursuant to title 1, division 2, part 2 (commencing with section 5110) of the Corporations Code.
"Occurrence" means an accident, including continuous or repeated exposure to conditions, that results in an unauthorized release of petroleum from an underground storage tank or residential tank. Unauthorized releases at the same site that require only a single site investigation shall be considered one occurrence. An unauthorized release subsequent to a previous unauthorized release at the same site shall only be considered a separate occurrence if an initial site investigation has been completed for the prior unauthorized release.
"Operator" means any person in control of, or having responsibility for, the daily operation of an underground storage tank or residential tank containing petroleum. The term includes any city, county, or district, or any agency or department thereof, but does not include the state or any agency or department thereof, or the federal government.
"Owner" means a person who owns an underground storage tank or a residential tank. The term includes an owner of real property who is a de facto owner of an underground storage tank or residential tank located on such property; however, the term does not include the state or any agency or department thereof, or the federal government.
"Permit" means a written authorization issued under Health and Safety Code, division 20, chapter 6.7 (commencing with section 25280) and includes but is not limited to the permit required pursuant to section 25284 for an owner or operator to operate an underground storage tank.
"Person" means an individual, trust, firm, joint stock company, corporation, or other entity, including a government corporation, partnership, limited liability company, or association. The term includes a city, county, district, or state, and an agency or department thereof; or the United States to the extent authorized by federal law.
"Petroleum" means crude oil, or any fraction thereof, that is liquid at 60 degrees Fahrenheit and 14.7 pounds per square inch absolute, including the following substances: motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils, including any additives contained in the formulation of the substances.
"Petroleum marketing facilities" means all facilities at which petroleum is produced or refined and all facilities from which petroleum is sold or transferred to other petroleum marketers or to the public.
"Petroleum marketing firms" means all firms owning petroleum marketing facilities. Firms owning other types of facilities with underground storage tanks as well as petroleum marketing facilities are considered to be petroleum marketing firms.
"Property damage" means actual loss, injury, or deterioration to a third party's real or personal property which is caused by an unauthorized release of petroleum from an underground storage tank or residential tank.
"Regional board" means a California Regional Water Quality Control Board.
"Regulatory agency" means the Board, a regional board, or a local, state, or federal agency that has responsibility or authority for regulating underground storage tanks or residential tanks or that has responsibility for corrective action or overseeing corrective action, for unauthorized releases from underground storage tanks or residential tanks.
"Regulatory technical assistance" means assistance from a person other than the claimant in the preparation and submission of a claim to the Fund. Regulatory technical assistance includes assistance with completing and submitting the Fund application, reimbursement requests, and supporting documentation, and complying with procurement requirements. Regulatory technical assistance does not include assistance with preparing and pursuing a site closure petition, an appeal to the Division Chief for unpaid claims, a petition for unpaid claims, or an action in court.
"Reimbursement Request" means documents required by the Division and necessary for reimbursement of a claim.
"Release" means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank or residential tank into or on the waters of the state, the land, or the subsurface soils. The term does not include releases which are clearly attributable to spills or overfills occurring as a result of filling or emptying of an underground storage tank or residential tank.
"Residence" means a building that is used primarily for dwelling purposes. Buildings excluded from the definition include, but are not limited to, hotels, motels, hospitals, and military barracks.
"Residential tank" means a tank, as defined in Health and Safety Code section 25281, subdivision (u), including pipes connected thereto, that satisfies all of the following conditions:
(a) The tank is used for the storage of petroleum.
(b) The tank is substantially or totally beneath the surface of the ground.
(c) The tank meets either (1) or (2) below:
(1) The tank is located at the residence of a person on property used exclusively for residential purposes at the time of discovery of the unauthorized release; or
(2) The tank is located at the residence of a person, the tank is located on property that on and after January 1, 1985, has not been used for agricultural purposes, the tank has a capacity of 1,100 gallons or less, and on and after January 1, 1985, the petroleum in the tank has been used solely as home heating oil for consumptive use on the premises where stored.
(d) The tank meets both (1) and (2) below:
(1) The tank meets one of the following:
(A) The tank has a capacity greater than 1,100 gallons; or
(B) The tank is not located on a farm; or
(C) The tank does not store motor vehicle fuel used primarily for agricultural or resale purposes.
(2) On or after January 1, 1985, the tank has not been used to store motor vehicle fuel used primarily for agricultural or resale purposes.
"Site" means the parcel of real property at which an underground storage tank or residential tank is located, subject to the following limitations:
(a) If underground storage tanks or residential tanks are located at adjacent parcels of real property, the adjacent parcels together constitute one site if both of the following apply:
(1) The underground storage tanks are, or have been, operated by the same person.
(2) The adjacent parcels are under common ownership or control.
(b) Notwithstanding subdivision (a), the Board may consider a parcel of real property as consisting of multiple sites, corresponding to the number of distinct underground storage tank or residential tank operations at the parcel, if the Board makes both of the following findings:
(1) There is more than one underground storage tank or residential tank located at the parcel.
(2) Each separately operated underground storage tank, residential tank, or group of underground storage tanks and residential tanks is not, and has not been, operated by a person who is operating or has operated another underground storage tank or residential tank at the same parcel.
"Small business" means a business which, at the time of application to the Fund, fits the definition of a small business set forth in Government Code section 14837, subdivision (d), except that a business that is domiciled or has its principal office outside of the state is a "small business" if the business otherwise fits the definition set forth in section 14837, subdivision (d).
"Tangible net worth" means the tangible assets that remain after deducting liabilities. Such assets do not include intangibles such as good will and rights in patents or royalties.
"Third party" means a person other than an owner of the real property, or an owner or operator of the underground storage tank or residential tank that is the subject of a claim. The term does not include current or former tenants or landlords of the site.
"Third party compensation" means compensation an owner or operator is legally obligated to pay a third party, whether or not the owner or operator receives reimbursement from the fund, for bodily injury or property damage to the third party resulting from an unauthorized release of petroleum from an underground storage tank or residential tank. Compensation must be made pursuant to a court-approved settlement, a final judgment other than a default judgment, or an arbitration award by a court-appointed arbitrator as a result of proceedings conducted in accordance with the Code of Civil Procedure, part 3, title 9 (commencing with section 1280), imposing liability on the owner or operator for costs eligible for reimbursement as set forth in section 2812.2, subdivision (f) of this chapter.
"Unauthorized release" means any release that does not conform to Health and Safety Code, division 20, chapter 6.7 (commencing with section 25280), whether the release is from a residential tank or a petroleum underground storage tank, unless the release is authorized by the Board or a regional board pursuant to Water Code, division 7 (commencing with section 13000).
"Underground storage tank" means an underground storage tank as defined in Health and Safety Code section 25281, subdivision (y), except that "underground storage tank" means only those underground storage tanks that contain only petroleum or, consistent with Federal Act, a mixture of petroleum with de minimis quantities of other regulated substances. "Underground storage tank" does not include any structures specifically exempted under California Code of Regulations, title 23, section 2621.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25281, 25299.11-25299.25, 25299.31, 25299.37, 25299.52, 25299.54(e)(1)-(2), 25299.55, 25299.57, 25299.58 and 25299.61, Health and Safety Code; and 40 Code of Federal Regulations Section 280.12.
s 2805. Applicability.
(a) This article applies to all owners and operators of underground storage tanks containing petroleum who, pursuant to the Federal Act, are required to demonstrate financial responsibility to take corrective action and compensate third parties for bodily injury and property damage caused by accidental releases of petroleum. Owners and operators who are not required to demonstrate financial responsibility by the Federal Act are not subject to the requirements of this article.
(b) Current federal financial responsibility requirements are contained in 40 Code of Federal Regulations, part 280 and are incorporated herein by reference.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.30, Health and Safety Code.
s 2806. General Responsibility to Meet Federal Requirements.
(a) All owners and operators subject to this article are required to demonstrate financial responsibility in the amounts and at the times required by the Federal Act. When owners and operators are no longer required to demonstrate financial responsibility by the Federal Act, they are no longer required to demonstrate financial responsibility by this article.
(b) An owner or operator is no longer required to demonstrate financial responsibility or maintain evidence thereof for any underground storage tank that has been permanently closed or, if corrective action is required, after the corrective action has been completed and the underground storage tank has been permanently closed in accordance with the applicable provisions of Health and Safety Code section 25298, the California Code of Regulations, title 23, division 3, chapter 16, article 7, and applicable local requirements.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.30, Health and Safety Code.
s 2806.1. Current Federal Compliance Dates.
(a) Owners and operators must comply with federal financial responsibility requirements by the date or dates specified in the Federal Act. The compliance date is determined by the characteristics of the owner as set forth in 40 Code of Federal Regulations, section 280.91. Currently the applicable federal compliance dates are:
(1) January 24, 1989 for all petroleum marketing firms owning 1,000 or more underground storage tanks and all other underground storage tank owners who report a tangible net worth of $20 million or more to the U.S. Securities and Exchange Commission (SEC), Dun and Bradstreet, the Energy Information Administration, or the Rural Electrification Administration;
(2) October 26, 1989 for all petroleum marketing firms owning 100-999 underground storage tanks;
(3) April 26, 1991 for all petroleum marketing firms owning 13-99 underground storage tanks at more than one facility;
(4) December 31, 1993 for all petroleum underground storage tank owners or operators not described in subdivisions (1) through (3) of this section, excluding local governmental entities;
(5) February 18, 1994 for local governmental entities; and
(6) December 31, 1998 for federally recognized Indian tribes that own underground storage tanks on Indian lands if those underground storage tanks comply with all current technical requirements, such as leak detection requirements.
(b) Federal and state agencies are not subject to financial responsibility requirements.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.30, Health and Safety Code.
s 2806.2. Demonstration of Compliance with Financial Responsibility Requirements by Owners and Operators.
If the owner and operator are separate persons, either the owner or operator shall demonstrate compliance with financial responsibility requirements. However, both the owner and operator are responsible for ensuring that applicable financial responsibility requirements are met.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.30 and 25299.31, Health and Safety Code.
s 2807. Required Financial Responsibility Amounts.
(a) Owners or operators must demonstrate financial responsibility in the amounts required by the Federal Act. Currently the federally required minimum amounts are:
(1) $1 million per occurrence for owners and operators of underground storage tanks either located at a petroleum marketing facility or which handle an average of more than 10,000 gallons of petroleum per month based on annual throughput for the previous calendar year; or
(2) $500,000 per occurrence for all owners or operators not included in the preceding subdivision; and
(3) $1 million annual aggregate coverage for owners or operators of 1 to 100 underground storage tanks; or
(4) $2 million annual aggregate coverage for owners or operators of 101 or more underground storage tanks.
(b) The amounts of assurance required under this section exclude legal defense cost as defined in 40 Code of Federal Regulations, section 280.92.
(c) The required per occurrence and annual aggregate coverage amounts do not in any way limit the liability of the owner or operator.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.30 and 25299.32, Health and Safety Code.
s 2808. Demonstration of Financial Responsibility Through Compliance with Federal Requirements.
Owners or operators may fulfill federal financial responsibility requirements in the manner and through the mechanisms authorized by the Federal Act. Owners or operators who choose to fulfill financial responsibility requirements through a mechanism other than the Fund must meet all applicable conditions and requirements, and are subject to all applicable provisions contained in the Federal Act.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.30 and 25299.33, Health and Safety Code.
s 2808.1. Use of Fund to Meet Financial Responsibility Requirements.
(a) As an alternative to, or in conjunction with, demonstration of financial responsibility in the manner and through use of other mechanisms authorized by the Federal Act, an owner or operator may demonstrate financial responsibility of up to $1 million through use of the Fund. In order to use the Fund as a basis for demonstration of financial responsibility for taking corrective action and for compensating third parties for bodily injury and property damage, an owner or operator must at all times:
(1) demonstrate financial responsibility of at least the following amount per occurrence and per annual aggregate coverage exclusive of the Fund:
Claim Priority Class Financial Responsibility
Pursuant to Section 2811.1 Amount
Priority Class A $-0-
Priority Class B $ 5,000
Priority Class C $ 5,000
Priority Class D $10,000
If a waiver is granted pursuant to section 2811, subdivision (a)(2)(B), demonstrate financial responsibility of at least twice the above amounts per occurrence and per annual aggregate coverage, exclusive of the Fund.
(2) demonstrate financial responsibility for an additional $1 million, exclusive of the Fund if the owner or operator is required to comply with the provisions of section 2807, subdivision (a)(4); and
(3) maintain eligibility to participate in the Fund.
(b) An owner or operator may demonstrate the financial responsibility required by subdivisions (a)(1) and (2) of this section through the use of any of the mechanisms authorized by the Federal Act, or through the use of any mechanism specified and approved by the Board. Owners and operators who choose to fulfill financial responsibility requirements in this manner must meet all applicable conditions and requirements, and are subject to all applicable provisions, indicated in the Federal Act.
(c) As an alternative to the mechanisms indicated in subdivision (b) of this section, an owner or operator may demonstrate compliance with applicable financial responsibility requirements by demonstration of a tangible net worth of ten times the required minimum applicable annual aggregate coverage required under or pursuant to subdivision (a)(1) of this section. The tangible net worth amount must be calculated on the basis of current market value of tangible assets and must reflect the tangible net worth of the owner or operator as of the close of the latest completed fiscal year used by the owner or operator. In order to utilize the alternative specified in this subdivision, the owner or operator shall ensure that both of the following occur:
(1) the chief financial officer or the owner or operator must sign, under penalty of perjury, a letter worded exactly as follows, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer for [insert: business name, business address and correspondence address of the owner or operator]. This letter is in support of the use of the Underground Storage Tank Cleanup Fund to demonstrate financial responsibility for taking corrective action and/or compensating third parties for bodily injury and property damage caused by an unauthorized release of petroleum in the amount of at least [insert: dollar amount] per occurrence and [insert: dollar amount] annual aggregate coverage.
Underground storage tanks at the following facilities are assured by this letter: [insert: the name and address of each facility where the underground storage tanks for which financial responsibility is being demonstrated are located].
1. Amount of annual aggregate coverage being assured by this $ __________
letter
2. Total tangible assets $ __________
3. Total liabilities $ __________
4. Tangible net worth (subtract line 3 from line 2. Line 4 must $ __________
be at least 10 times line 1)
I hereby certify that the wording of this letter is identical to the wording specified in section 2808.1, subdivision (c)(1), chapter 18, division 3, title 23 of the California Code of Regulations.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed at [insert: place of execution] on [insert: date].
[Signature]
[Name]
[Title]
(2) the letter must be signed by the date on which the owner or operator commences use of the alternative allowed by this subdivision and the letter must be renewed within 150 days after the close of each subsequent fiscal year so long as the owner or operator continues to use this alternative to demonstrate financial responsibility.
(d) If an owner or operator using the alternative provided by subdivision (c) of this section no longer meets applicable tangible net worth requirements based on the net worth of the owner or operator as of the close of the latest completed fiscal year used by the owner or operator, the owner or operator must demonstrate the required financial responsibility by an acceptable alternate mechanism within 150 days of the close of such fiscal year.
(e) The Division or any appropriate regulatory agency may require reports of financial condition at any time from an owner or operator. If the Division or regulatory agency finds, on the basis of such reports or other information, that the owner or operator no longer meets the applicable tangible net worth requirements, the owner or operator must demonstrate the required financial responsibility by an acceptable mechanism within 30 days after notification of such finding.
(f) If an owner or operator subject to the requirements of subdivisions (d) and (e) of this section cannot demonstrate the required financial responsibility called for by these subdivisions within the time frames stated therein, the owner or operator must notify the Division and any appropriate regulatory agencies within 10 days after expiration of the time frames indicated in subdivisions (d) and (e).
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.31, 25299.32, 25299.33 and 25299.58(d), Health and Safety Code.
s 2808.2. Fund Coverage.
(a) An owner or operator using the Fund to demonstrate financial responsibility shall be liable for all costs of corrective action, third party compensation, and regulatory technical assistance.
(b) Provided that an owner or operator is in compliance with applicable financial responsibility requirements and meets all requirements for payment from the Fund, and subject to the availability of funds, the Fund will reimburse the owner or operator as follows:
(1) for the reasonable and necessary cost of corrective action, third party compensation, and regulatory technical assistance incurred by the owner or operator up to an amount not to exceed $1,000,000 for each occurrence, less the applicable financial responsibility limits set forth in section 2808.1, subdivision (a)(1) of this chapter; and
(2) after the Fund has reimbursed an owner or operator the maximum amount specified in subdivision (b)(1) of this section, up to an additional $500,000 for each occurrence for the reasonable and necessary cost of corrective action and regulatory technical assistance in excess of the amount specified in subdivision (b)(1) of this section.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.32, 25299.57(a), (d) and (j), 25299.58, 25299.59(b), 25299.60 and 25299.81(c)(1), Health and Safety Code.
s 2808.3. Fund Coverage.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.32(a), 25299.57(a) and (d), 25299.58, 25299.59(e) and 25299.77, Health and Safety Code.
s 2809. Reporting by Owner or Operator.
(a) An owner or operator shall notify the appropriate regulatory agency, in writing, of compliance with the financial requirements of this article within 45 days of the appropriate date specified in section 2806.1. An owner or operator shall notify the appropriate regulatory agency of compliance with financial responsibility when applying for an initial permit to operate a new underground storage tank containing petroleum. Thereafter, at the time of permit renewal, an owner or operator shall notify the appropriate regulatory agency of continued compliance with the requirements of this article.
(b) An owner or operator must submit a copy of the financial responsibility mechanism or mechanisms being used by the owner or operator, and otherwise document current compliance with financial responsibility requirements, upon request of the appropriate regulatory agency under any of the following conditions:
(1) within 30 days after the owner or operator identifies an unauthorized release of petroleum which is required to be reported under the California Code of Regulations, title 23, division 3, chapter 16, article 5; or
(2) as required by the Federal Act.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.31 and 25299.33, Health and Safety Code.
s 2809.1. Recordkeeping.
(a) Owners and operators must maintain evidence of all mechanisms used to demonstrate financial responsibility in accordance with the provisions of this article until the provisions of this article no longer require such maintenance. Such evidence must be maintained at the underground storage tank site or sites or the owner or operator's place of business.
(b) Evidence of all mechanisms used, other than a chief financial officer's letter utilized pursuant to subdivision (c) of section 2808.1, shall be maintained in accordance with the requirements of the Federal Act. A copy of any chief financial officer's letter used pursuant to subdivision (c) of section 2808.1 must be maintained on file at the underground storage tank site(s) or the owner or operator's place of business within 5 days after execution of the letter. The copy of such letter shall be maintained so long as the owner or operator continues to use the letter to demonstrate financial responsibility and must be maintained in addition to the certification provided for in subdivision (c) of this section.
(c) An owner or operator using a mechanism allowed by this article must maintain an updated copy of a certification of financial responsibility worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
Certification Of Financial Responsibility
[Owner or operator] hereby certifies that [owner or operator] is in compliance with the requirements of section 2807, article 3, chapter 18, division 3, title 23, California Code of Regulations.
The mechanisms used to demonstrate financial responsibility as required by section 2807 are as follows:
[List the facility and address, each type of mechanism, name of issuer, mechanism number (if applicable), amount of coverage, effective period of coverage, and whether the mechanism covers taking corrective action and/or compensating third parties for bodily injury and property damage]
[Signature of owner or operator]
[Name of owner or operator]
[Title]
[Date]
[Signature of witness or notary]
[Name of witness or notary]
[Date]
The owner or operator must update this certification whenever the mechanisms used to demonstrate financial responsibility change.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.31 and 25299.33, Health and Safety Code.
s 2809.2. Additional Financial Information.
The Division or an appropriate regulatory agency may require an owner or operator to submit evidence of financial responsibility or other information relevant to compliance with this article at any time.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.31 and 25299.33, Health and Safety Code.
s 2810. Types of Costs Reimbursed.
(a) A claimant may submit a claim to the Fund for the reimbursement of the following types of costs incurred due to an occurrence:
(1) corrective action costs incurred for work performed on or after January 1, 1988;
(2) third party compensation costs;
(3) regulatory technical assistance costs incurred for work performed on or after January 1, 1997; or;
(4) any combination of the foregoing types of costs.
(b) A claimant must submit a separate claim for each occurrence. Multiple owners and operators of a site may submit joint claims.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.13, 25299.51(f) and (i), 25299.54(a), 25299.55(c), 25299.57 and 25299.58, Health and Safety Code.
s 2810.1. Eligible Claimants.
(a) Only a current or former owner or operator of an underground storage tank or residential tank who has paid or will pay for the costs for which reimbursement from the Fund is requested may file a claim against the Fund. In order to file a request for reimbursement of third party compensation costs, the owner or operator must be eligible to file a request for reimbursement of corrective action costs for the site at which the unauthorized release occurred, and the judgment, arbitration award, or settlement must have been entered or approved after January 1, 1988.
(b) Notwithstanding subdivision (a), a person who owns a site may file a claim against the Fund if:
(1) an unauthorized release requiring corrective action previously occurred at the site;
(2) the site was the subject of completed corrective action;
(3) as a result of the corrective action identified in subdivisions (b)(1) and (b)(2), a regulatory agency issued a closure letter stating that no further action was required at the site;
(4) the person who completed the corrective action identified in subdivisions (b)(1) and (b)(2) was eligible for reimbursement from the Fund and filed a claim with the Fund;
(5) reimbursements by the Fund for earlier claims at the site did not exceed the amount of reimbursement authorized by section 2808.2, subdivision (b) of this chapter; and
(6) a regulatory agency requires additional corrective action at the site due to additionally discovered contamination from the previous unauthorized release.
(c) Purchasers of real property or persons who otherwise acquire real property on which an underground storage tank or residential tank is situated may not receive reimbursement from the Fund for a cost attributable to an occurrence that commenced prior to acquisition of the real property if:
(1) the purchaser or acquirer knew or in the exercise of reasonable diligence would have discovered that an underground storage tank or residential tank was located on the real property being acquired; and
(2) any person who owned the site or owned or operated an underground storage tank or residential tank at the site prior to acquisition by the purchaser or acquirer would not have been eligible for reimbursement from the Fund.
(d)(1) If an owner of an underground storage tank or residential tank is ineligible to file a claim against the Fund, the operator at the time of the act or omission causing the owner's ineligibility is also ineligible to file a claim for the site.
(2) If an operator of an underground storage tank or residential tank is ineligible to file a claim against the Fund, the owner at the time of the act or omission causing the operator's ineligibility is also ineligible to file a claim for the site.
(3) If a previous owner or operator of an underground storage tank or residential tank is ineligible to file a claim against the Fund, the current owner and the current operator may not receive reimbursement from the Fund for a cost attributable to an occurrence that commenced when a previous owner or operator had ownership or control over the underground storage tank or residential tank.
(e) For purposes of subdivisions (c) and (d)(3), an owner or operator may use one of the following to demonstrate that a cost is eligible for reimbursement from the Fund because the cost is attributable to an occurrence that commenced after an ineligible owner or operator ceased having ownership of or control over the underground storage tank or residential tank.
(1) A regulatory agency has issued a no further action letter for the site after the previous, ineligible owner or operator ceased having ownership of or control over the underground storage tank or residential tank.
(2) A person acquired the real property, underground storage tank, or residential tank, or commenced operating at a site in reliance on an environmental site assessment that concluded that petroleum contamination was not an environmental concern at the site. For purposes of this subdivision, an environmental site assessment must conform to the standards set forth in subdivision (e)(4) of this section.
(3) After a person acquired the real property, underground storage tank, or residential tank, or commenced operating at a site, an environmental site assessment concluded that petroleum contamination was not present at the site at the time of the assessment above regulatory action levels. For purposes of this subdivision, an environmental site assessment must conform to the standards set forth in subdivision (e)(4) of this section.
(4) A person may rely only on an environmental site assessment that conforms with all the standards of this subdivision (e)(4) to demonstrate that a cost to be submitted to the Fund is not attributable to an occurrence that commenced when a prior owner or operator had ownership of or control over an underground storage tank or residential tank.
(A) the person seeking to submit a claim to the Fund contracted with the person conducting the environmental site assessment for preparation of the site assessment;
(B) the environmental site assessment conforms to generally accepted commercial practices or standards for due diligence;
(C) a professional geologist or professional engineer substantially controls the environmental site assessment and signs the report of the environmental site assessment;
(D) the environmental site assessment concludes that petroleum contamination is not an environmental concern because either:
(i) there is no evidence that there has been a release at the property; or
(ii) to the extent there has been a release at the property, a regulatory agency has issued a written statement that no further action is required for any release identified by the environmental site assessment; and
(E) in those circumstances in which the person preparing the environmental site assessment determines that an underground storage tank or residential tank is present or has been present on the site, the environmental site assessment includes sampling at locations that, in the engineer's or geologist's professional opinion, are most likely to have petroleum contamination, but at a minimum, includes sampling and analysis of soil for petroleum constituents at each of the following locations:
(i) underneath the underground storage tank or residential tank,
(ii) at least once for each twenty linear feet of trench for piping, and
(iii) beneath each dispenser island at the site.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Sections 25299.10, 25299.13, 25299.37(a)-(c), 25299.51(f) and (i), 25299.54, 25299.55, 25299.57 and 25299.58, Health and Safety Code.
s 2810.2. Ineligibility of Cost Prior to January 1, 1988.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.55(c), Health and Safety Code.
s 2810.3. Intentional or Reckless Acts; Ineligibility of Costs.
Note: Authority cited: Section 25299.77, Health and Safety Code. Reference: Section 25299.61, Health and Safety Code.
s 2811. Permitting and Other Eligibility Requirements.
(a) An owner or operator of an underground storage tank or a residential tank for which a permit is required under section 25284 of the Health and Safety Code shall be entitled to reimbursement for eligible corrective action, regulatory technical assistance, and third party compensation costs if all of the following are met:
(1) There was an unauthorized release of petroleum from the underground storage tank or residential tank.
(2)(A) Except as provided in subdivision (B), the claimant has complied with the permit requirements of chapter 6.7 (commencing with section 25280).
(B) If the underground storage tank or residential tank that is the subject of the claim was installed before January 1, 1990, and the claimant owned or operated the tank before January 1, 1990, the claimant must have obtained any permit required by Health and Safety Code, division 20, chapter 6.7, or filed a substantially complete application for any required permit on or before January 1, 1990. If the claimant did not obtain or file for a permit required by Health and Safety Code section 25284 on or before January 1, 1990, then the claimant may seek a waiver of the requirement to obtain a permit, as set forth in subdivisions 1. and 2. below.
1. For claims filed before January 1, 1994, a claimant may obtain a waiver of the requirement to obtain a permit required by Health and Safety Code section 25284 if the claimant owned or operated the tank before January 1, 1990, and demonstrates to the satisfaction of the Division that obtaining or applying for a permit was beyond the claimant's reasonable control, or that under the circumstances of the particular case, it would be unreasonable or inequitable to impose the requirement to obtain a permit. Any claimant who obtains a waiver of the requirement to obtain a permit pursuant to this subdivision shall pursue with reasonable diligence and obtain any permit required by Health and Safety Code, division 20, chapter 6.7.
2. For claims filed on or after January 1, 1994, and for claims filed before January 1, 1994, but where the claimant is not granted a waiver pursuant to subdivision 1. above, a claimant may obtain a waiver of the requirement to obtain a permit required by Health and Safety Code section 25284 if the claimant owned or operated the tank before January 1, 1990, and demonstrates all of the following to the satisfaction of the Division:
a. The claimant was unaware prior to January 1, 1990, of the requirement to obtain a permit, and the claimant did not intentionally avoid the requirement or associated fees at any time.
b. Before submitting the application to the Fund, the claimant complied with the financial responsibility requirements set forth in section 25299.31 of the Health and Safety Code.
c. Before submitting the application to the Fund, the claimant paid for and obtained any currently required permit.
d. Before submitting the application to the Fund, the claimant paid all currently due fees, interest, and penalties imposed pursuant to Health and Safety Code, division 20, chapter 6.75, article 5 (commencing with section 25299.40) and Revenue and Taxation Code, division 2, part 26 (commencing with section 50101) for the underground storage tank that is the subject of the claim. (continued)